Opinion
NO. 2017-CA-001616-MR
03-22-2019
CHARLES ASHER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erin Hoffman Yang Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PERRY CIRCUIT COURT
HONORABLE ALISON C. WELLS, JUDGE
ACTION NO. 16-CR-00022 OPINION
AFFIRMING
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BEFORE: LAMBERT AND MAZE, JUDGES; HENRY, SPECIAL JUDGE. MAZE, JUDGE: Following a guilty plea, Charles Asher was convicted of cultivation of marijuana, more than 5 plants. Nearly a year later, he moved to amend his judgment and sentence, alleging it did not reflect the terms of his plea agreement with the Commonwealth. After careful review, we hold the trial court correctly found that it no longer had jurisdiction to amend his sentence and affirm.
Special Judge Michael L. Henry sitting by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Asher agreed to plead guilty in exchange for a recommended sentence of three years' imprisonment, probated for five years. Only the first year of supervision was to be supervised. At the subsequent sentencing hearing, the trial court deviated slightly from the agreement, stating Asher would be sentenced to "three years to serve, probated for a period of five years, to be supervised throughout." Apparently, this deviation was not noticed by Asher or his counsel. On June 20, 2016, the trial court entered a written judgment stating that, "The defendant is sentenced to imprisonment for a maximum of three (3) years under Count 1 of the Indictment. This sentence shall be probated for a period of five (5) years and shall be supervised by the Division of Probation & Parole." Once again, the discrepancy between Asher's plea agreement and the trial court's judgment and sentence went unnoticed and was not appealed.
Asher was then subject to multiple probation revocation hearings. In June 2017, Asher moved to amend his sentence. Asher argued that the provision in his judgment and sentence that he be supervised throughout his probation deviated from his plea agreement and constituted a "clerical error" the trial court could correct at any time. The trial court found that its alleged error was not clerical; therefore, it no longer had jurisdiction to amend its prior judgment and sentence. Asher renewed this motion several months later, which was also denied. This appeal follows.
In most circumstances, a trial court lacks power to amend a judgment ten days after the entry of that judgment. CR 59.05. However, RCr 10.10 provides an exception to the ten-day rule by permitting a court to correct "clerical mistakes" at any time. Clerical mistakes are "all errors, mistakes, or omissions which are not the result of the exercise of the judicial function." Machniak v. Commonwealth, 351 S.W.3d 648, 652 (Ky. 2011). When a court makes a mistake that is "the deliberate result of judicial reasoning and determination" then it makes a judicial error that cannot be corrected ten days after judgment. Id. at 654. When a written judgment and sentence accurately reflects a trial court's oral judgment, then any allege sentencing error is judicial, not clerical. Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010).
Kentucky Rules of Civil Procedure.
Kentucky Rules of Criminal Procedure. --------
In this case, the trial court's written judgment and sentence accurately reflects the oral judgment it pronounced at Asher's sentencing hearing. Although the trial court likely erred by failing to provide Asher an opportunity to withdraw his plea, Prater v. Commonwealth, 421 S.W.3d 380, 386-87 (Ky. 2014), the error was judicial, not clerical. Thus, the trial court correctly found that it lost jurisdiction to amend Asher's judgment and sentence ten days after its entry.
Accordingly, the order of the Perry Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Erin Hoffman Yang
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky